Kennedy v Wallace [2004] FCAFC 337

FEDERAL COURT OF AUSTRALIA

Kennedy v Wallace [2004] FCAFC 337

LEGAL PROFESSIONAL PRIVILEGE – document prepared by the appellant as an aide-memoire before consultation with a person who was a foreign lawyer but who also had other capacities in his relationship with the appellant– whether the appellant proved that the dominant purpose of creating the document or any part thereof was for the obtaining of legal advice – privilege on the facts not made out – place of foreign lawyers in considering legal professional privilege – discussion of the scope of legal professional privilege where a document is created for the dominant purpose of obtaining legal advice but is not itself the communication

AM & S Europe Ltd v Commission of the European Communities [1983] QB 878 cited Attorney-General (NT) v Kearney (1985) 158 CLR 500 cited Attorney-General (NT) v Maurice (1986) 161 CLR 475 cited Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 discussed Baker v Campbell (1983) 153 CLR 52 discussed Balabel v Air India [1988] 1 Ch 317 referred to Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 discussed Commissioner of Australian Federal Police v Propend (1997) 188 CLR 501 referred to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 referred to DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 203 ALR 348 referred to Esso Australia Resources v Federal Commission of Taxation (1999) 201 CLR 49 referred to Goldberg v Ng (1995) 185 CLR 83 referred to Grant v Downs (1976) 135 CLR 674 discussed Great Atlantic Insurance Co v House Insurance Co [1981] 1 WLR 529 referred to Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445 followed Lawrance v Campbell (1859) 4 Drewry 485; 62 ER 186 cited Macfarlan v Rolt (1872) LR 14 Eq 580 cited Mitsubishi Electric v Victorian Work Cover Authority [2002] 4 VR 332 discussed R v Bell; Ex parte Lees (1980) 146 CLR 141 referred to Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100 referred to Three Rivers Council v Governor and Co of the Bank of England(No5) [2003] EWCA Civ 474; [2003] QB 1556 discussed Three Rivers District Council v Governor and Company of the Bank of England [2004] UKHL 48 referred to Trade Practices Commission v Sterling (1978) 36 FLR 244 discussed Varawa v Howard Smith & Co Ltd (1910) 10 CLR 607 cited Waterford v Commonwealth (1987) 163 CLR 54 cited TREVOR JOHN KENNEDY v ANDREW CHARLES VERSCHUER WALLACE & ORS N 470/04 BLACK CJ, EMMETT & ALLSOP JJ 23 DECEMBER 2004 SYDNEY